Superior Court Rules

ORDER 5

ISSUE OF SUMMONSES AND PETITIONS

1. Save as otherwise provided in these Rules, every originating summons shall be issued out of the Central Office.

2. Originating summonses shall be prepared by the plaintiff or his solicitor, and shall be written or printed, or partly written and partly printed, on paper of the same description as by these Rules directed in the case of proceedings directed to be printed.

3. Save as hereinafter otherwise provided, no originating summons shall, at the time of issue, be assigned to any Judge.

4. Subject to the power of transfer, the following originating summonses shall, at the time of issue, be assigned to such Judge or Judges as the President of the High Court may from time to time assign to hear such originating summonses—

(1) Every special summons relating to any particular class of claim.

(2) Every originating summons relating to any of the matters following—

(a) the administration of the estates of deceased persons;

(b) the dissolution of partnership or the taking of partnership or other accounts;

(c) the redemption of mortgages;

[SI 149/10]

(d) the raising of portions or other charges on land;

(e) the sale and distribution of the proceeds of property subject to any lien or charge;

(f) the execution of trusts, charitable or private;

(g) the rectification or setting aside or cancellation of deeds or other written instruments;

(h) the specific performance of contracts between vendors and purchasers of land, including contracts for leases, and also the specific performance of any other contracts in respect of which the court would decree performance;

(i) the partition or sale of real estates, including chattels real;

(j) any other matters formerly within the exclusive jurisdiction of the former Court of Chancery or the former Chancery Division of the former Supreme Court of Judicature or any Judge or Judges thereof (other than (i) the wardship of infants and the care of infants’ estates or (ii) matters formerly within the exclusive cognisance of the former Landed Estates Court).

(3) Every originating summons relating to such other matter or matters as Rules of Court may from time to time specify.

5. In the case of any originating summons within rule 4, it shall be the duty of the officer issuing the summons to mark and assign the summons for the Judge assigned as mentioned in the said rule or (if more than one Judge has been so assigned) for the Judges so assigned in rotation. Any case of doubt or difficulty shall be determined by the Master and the assignment or non-assignment of any summons at the time of issue shall be without prejudice to the power of the Master to vary or alter such assignment or non-assignment.

6. Where an originating summons has been so assigned under rules 4 and 5 to a particular Judge or has (whether assigned or not) been heard by a particular Judge, every subsequent summons, notice of motion, or petition, relating to the same matter, or so connected therewith as to be conveniently dealt with by the same Judge, shall whenever practicable be marked by the proper officer with the name of such Judge, and the party or solicitor presenting such summons, notice of motion, or petition, shall, if there be to his knowledge such relation or connection, so certify. Such certificate shall be in the Form No 5 in Appendix A, Part I; and such certificate shall be countersigned by the Registrar of the Judge to whom such originating summons had been assigned or by whom such originating summons had been heard as the case may be.

7. There shall be books in the Central Office to be called Cause Books in which all proceedings commenced by originating summons, issued out of the Central Office, shall be entered. Every summons shall be entered consecutively in order of issue and shall be distinguished by the date of the year and a number in consecutive order commencing on the first day of January in each year, with or without a distinguishing letter or other sign; and the said date and number, together with the distinguishing letter or sign (if any) shall constitute the record number of the proceeding.

8. Every originating summons shall bear date of the day of issue and shall be authenticated in the name of the Chief Justice, or if the office of Chief Justice be vacant, in the name of the President of the Court of Appeal and shall be sealed with the seal of the High Court.

[SI 404/17]

9. Every originating summons shall be sealed and marked with the record number by the proper officer, and shall thereupon be deemed to be issued. No originating summons shall be served until the same shall have been so sealed and marked.

10. One duplicate or more of every originating summons shall be so sealed and marked on the application of the plaintiff or his solicitor.

11. The plaintiff or other party or his solicitor shall, on presenting an originating summons for sealing, leave with the proper officer a copy, written or printed, or partly written and partly printed, on paper of the description aforesaid, of such summons and all the indorsements thereon, and such copy shall be signed by the solicitor leaving the same, or by the plaintiff himself if he sues in person.

12. The officer receiving the copy summons pursuant to rule 11 shall cause the same to be marked with the record number and to be filed and shall also cause an entry of the particulars thereof to be made in the appropriate Cause Book as herein before provided.

13. The issue of a summons in probate proceedings shall be preceded by the filing of an affidavit made by the plaintiff or one of the plaintiffs in verification of the indorsement on the summons. On issuing the summons the plaintiff shall, if he has not already so done, lodge a caveat in the Probate Office entitled in the estate of the deceased person.

14. (1) Save as is otherwise provided for in these Rules, no summons or other originating document for service out of the jurisdiction or of which notice is to be given out of the jurisdiction, shall be issued without leave of the court.

(2) Service of an originating summons or other originating document or notice of an originating summons or other originating document out of the jurisdiction is permissible without the leave of the Court, if, but only if, it complies with the following conditions:

(i) each claim made by the summons or other originating document is one which by virtue of Regulation No. 1215/2012, Regulation No. 2201/2003, the 1968 Convention or the Lugano Convention, the Court has power to hear and determine, and

(ii) no proceedings between the parties concerning the same cause of action are pending between the parties in another Member State of the European Union or in a Contracting State of the Lugano Convention.

[SI 9/16; SI 506/05]

15. Save as otherwise provided in these Rules, every petition to the court shall be presented by leaving it with the proper officer at the Central Office. Subject thereto, the foregoing provisions of this Order shall apply to a petition in the same manner as they apply to an originating summons, and references in this Order to ‘originating summons’ and ‘plaintiff’ shall be construed as including references to ‘petition’ and ‘petitioner’ respectively.

16. At the foot of every petition presented to the court, and of every copy thereof, a statement shall be made of the persons, if any, intended to be served therewith, and if no person is intended to be served a statement to that effect shall be made at the foot of the petition and of every copy thereof.

17. Unless the court gives leave to the contrary there must be at least two clear days between the service and the day for hearing of a petition.

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